SIX MONTHS' DEATH GRATUITY-NAVAL RESERVE FORCE.

The act of June 4, 1920, 41 Stat., 824, providing for the payment of a gratuity of six months' pay to the widow, children, or designated beneficiary of an officer or enlisted man of the " Regular Navy" dying in the service from wounds or disease not the result of his own misconduct, has no application to members of the Naval Reserve Force, that service being separate and distinct from the Regular Navy and forming no part thereof.

Decision by Comptroller General McCarl, July 19, 1922.

Stephen F. Holland applied May 16, 1922, for review of settlement N-221760, dated April 11, 1922, this office, disallowing his claim as father and designated beneficiary of Forrest Leo Holland, A. S., United States Naval Reserve Force, deceased, for an amount equal to six months' pay at the rate received by his son at the date of his death under the provisions of the act of June 4, 1920, 41 Stat., 824.

The said act provides:

That hereafter, immediately upon official notification of the death from wounds or disease, not the result of his or her own misconduct, of any officer, enlisted man, or nurse on the active list of the Regular Navy or Regular Marine Corps, or on the retired list when on active duty, the Paymaster General of the Navy shall cause to be paid to the widow, and if there be no widow to the child or children, and if there be no widow or child, to any other dependent relative of such officer, enlisted man, or nurse previously designated by him or her, an amount equal to six months' pay at the rate received by such officer, enlisted man, or nurse at the date of his or her death. Provided, That nothing in this section or in other existing legislation shall be construed as making the provisions of this section applicable to officers, enlisted men, or nurses of any forces of the Navy of the United States other than those of the regular Navy and Marine Corps,

The act of June 4, 1920, 41 Stat., 817, authorized the establishment at two of the permanent naval training stations experimental summer schools for boys between the ages of 16 and 20 years, and provided "that those under instructions, with the consent of their parents or their guardians, shall enroll in the Naval Reserve Force for not less than three months, and no person not so enrolled shall be admitted to said training schools."

It appears that Forrest Leo Holland, in accordance with the above provision, enrolled as apprentice seaman, United States Naval Reserve Force, on July 13, 1920, and was admitted to the boys' summer school established at the United States Naval Training Station, Hampton Roads, Va., where he was drowned on August 14, 1920.

As the provision of the act of June 4, 1920, supra, authorizing the payment of the gratuity in question is only applicable to the beneficiaries of officers, enlisted men, etc., of the Regular Navy or Regular Marine Corps, and as Forrest Leo Holland was a member of the Naval Reserve Force, the question presented would be whether the Naval Reserve Force is a part of the Regular Navy.

The Naval Reserve Force was established by the act of August 29, 1916, 39 Stat., 587, to consist of six classes, and to be composed of citizens of the United States who, by enrolling under regulations prescribed by the Secretary of the Navy or by transfer thereto as in

this act provided, obligate themselves to serve in the Navy in time of war or during the existence of a national emergency. There were allowed in such force the various ratings, grades, and ranks, not above the rank of lieutenant commander, corresponding to those in the Navy, and it was provided therein that the members of such force shall, when actively employed as set forth in this act, be entitled to the same pay, allowances, etc., as officers and enlisted men of the naval service on active duty of corresponding rank or rating and of the same length of service.

It seems clear that the Naval Reserve Force was established as a separate distinct force to serve in the Navy during the war or national emergency and was in addition to the permanent authorized strength of the Navy. The act of June 4, 1920, 41 Stat., 834, authorizes the employment of members of this force on active duty, with their own consent, to a limited extent.

In this act the term "Regular Navy" is used as follows:

That the number of naval reservists, so employed on active duty, together with the total number of enlisted men in the Regular Navy, shall not exceed the total enlisted strength of the Navy as authorized by law.

In the act of July 12, 1921, 42 Stat., 140, the Naval Reserve Force is also treated as a separate, distinct force, and not a part of the Regular Navy.

It thus appears that the term "Regular Navy" is used in the laws relating to the Navy to describe the permanent establishment authorized by law as distinguished from the Naval Reserve Force and other temporary forces.

I am constrained to hold, therefore, that the act of June 4, 1920, authorizing the payment of a gratuity to the beneficiary of a deceased officer or enlisted man of the Regular Navy has no application to the beneficiary of a member of the Naval Reserve Force. In this connection see 27 Comp. Dec., 974.

I am not aware of any subsequent legislation extending to beneficiaries of members of the Naval Reserve Force the benefit of this provision.

Having reached this conclusion, it is unnecessary to determine whether the claim otherwise comes within the terms of the act. A review of the settlement requires that it be sustained.

LEAVE OF ABSENCE FOR CIVILIAN EMPLOYEES ATTENDING NATIONAL GUARD ENCAMPMENTS AND FIELD EXERCISES OF OFFICERS' RESERVE CORPS.

The leave of absence, without loss of time or pay, granted to officers and employees of the United States who are members of the National Guard, under section 80 of the act of June 3, 1916, 39 Stat., 203, is limited to days engaged in field or coast-defense training ordered under the national defense act, and does not include encampments or exercises ordered by the State.

Employees of the United States who are also members of the Officers' Reserve Corps are entitled, in addition to any other leave that may legally be granted them, to leave for the specific purposes named in the act of May 12, 1917, 40 Stat., 72, not to exceed 15 days in any one calendar year. Comptroller General McCarl to the President, Board of Managers, National Home for Disabled Volunteer Soldiers, July 20, 1922.

There was received July 14 your letter of July 8, 1922, addressed to the War Department Division of this office, requesting decision whether employees of the National Home for Disabled Volunteer Soldiers who are also members of the National Guard and who, as such members of the National Guard, attend encampments, are entitled to leave of absence with full pay for the time absent in attendance at encampments, or whether such absence should be deducted from annual leave; and if no annual leave is due, whether the absence should be without pay. The same questions are asked respecting employees who are members of the Officers' Reserve Corps of the Army.

Section 80 of the national defense act, June 3, 1916, 39 Stat., 203, provides:

All officers and employees of the United States and of the District of Columbia who shall be members of the National Guard shall be entitled to leave of absence from their respective duties, without loss of pay, time, or efficiency rating, on all days during which they shall be engaged in field or coast-defense training ordered or authorized under the provisions of this act.

Under this provision of law members of the National Guard who are also employees of the United States are entitled, as employees of the United States, to leave of absence for the purpose therein stated in addition to any annual leave that may legally be granted them. The leave of absence is, however, limited to the time engaged in coast-defense or field training ordered or authorized under the national defense act and does not include absence for National Guard service for other purposes. Your letter does not indicate whether the encampment is one ordered under section 94 of the national defense act, or an encampment ordered by the State independently of the national defense act and without the aid of Federal funds. If the latter, additional leave would not be authorized therefor, 26 Comp. Dec., 551. It is probable, however, that the situation is otherwise, and that it is the annual encampment under section 94.

With respect to members of the Officers' Reserve Corps, the act of May 12, 1917, 40 Stat., 72, provides:

All officers and employees of the United States or of the District of Columbia who shall be members of the Officers' Reserve Corps shall be entitled to leave of absence from their respective duties, without loss of pay, time, or efficiency rating, on all days during which they shall be ordered to duty with troops or at field exercises, or for instruction, for periods not to exceed fifteen days in any one calendar year.

Employees of the United States who are also members of the Officers' Reserve Corps are entitled, in addition to any other leave

that may legally be granted them, to leave for the specific purposes named in the law, not to exceed 15 days in any one calendar year. 1 Comp. Gen., 544.

LONGEVITY PAY-FIELD CLERKS, QUARTERMASTER CORPS.

The act of August 29, 1916, 39 Stat., 625, granting to field clerks, Quartermaster Corps, the same allowances as pay clerks, does not grant them the right to longevity increase of pay provided by section 1262, Revised Statutes, such increase being a part of the pay and not an allowance.

Comptroller General McCarl to Maj. Jerome Clark, United States Army, July 21, 1922.

I have your letter of June 21, 1922, requesting decision whether you are authorized to pay voucher therewith transmitted, stated in favor of G. D. Glover, field clerk, Quartermaster Corps, for longevity increase of pay for over five years' service from August 29, 1921 (when five years' service as field clerk, Quartermaster Corps, is stated to have been completed), to May 31, 1922, $151.10.

The act of August 29, 1916, 39 Stat., 625, provides:

Hereafter not to exceed two hundred clerks, Quartermaster Corps, who shall have had twelve years of service, at least three years of which shall have been on detached duty away from permanent stations, or on duty beyond the continental limits of the United States, or both, shall be known as field clerks, Quartermaster Corps, and shall receive the same allowances, except retirement, as heretofore allowed by law to pay clerks, Quartermaster Corps, and shall be subject to the rules and articles of war.

Section 4-a of the act of June 4, 1920, 41 Stat., 761, contained a provision that

Hereafter no appointments as Army field clerks, or field clerks, Quartermaster Corps, shall be made.

Section 5 of the act of May 18, 1920, 41 Stat., 602, provided a temporary increase in pay to continue no longer than June 30, 1922, as follows:

That Army field clerks and field clerks Quartermaster Corps, whose total pay and allowances do not exceed $2,500 per annum, shall be paid an increase at the rate of $240 per annum: Provided further, That such Army field clerks and field clerks Quartermaster Corps, whose total pay and allowances exceed $2,500 but do not exceed $2,740 per annum, shall be paid such additional amount as will make their total pay and allowances not to exceed $2,740 per annum: Provided further, That this section shall not be construed to reduce the pay and allowances of any Army field clerk or field clerk Quartermaster Corps.

Army field clerks are not entitled to longevity increase of pay for prior service in the Army. 25 Comp. Dec., 432.

The statute creating the grade of field clerk, Quartermaster Corps, provides only that they shall have the same allowances to which pay clerks, Quartermaster Corps, were theretofore entitled. Longevity increase of pay provided by section 1262, Revised Statutes, for officers of the Army is pay and not an allowance; it does not, therefore, accrue to field clerks, Quartermaster Corps.

989449 0-52- 4

It may also be observed that the pay of field clerks, Quartermaster Corps, is not fixed by statute but by administrative action, and is payable from lump-sum appropriations. Such increase in pay as may be warranted by the increased value of the services of the individual resulting from length of service, and which may be permitted by law, can be and probably is provided for by administrative action. See Brown v. United States, 18 Ct. Cls., 545.

The voucher is herewith returned, and you are informed that you are not authorized to pay it.

RELIEF OF DESTITUTE AMERICAN SEAMEN.

Foreigners who ship on American vessels in a port of the United States become American seamen within the purview of the act of June 1, 1922, 42 Stat. 603, providing relief for destitute American seamen, and being discharged for cause would not necessarily terminate that status. While their discharge, trial, conviction, and sentence for insubordination may forfeit their right to specific benefits provided by the various laws for destitute American seamen, they may, within the discretion of the Department of State, be furnished temporary relief.

Comptroller General McCarl to the Secretary of State, July 21, 1922.
I have your letter of July 6, 1922, as follows:

The Department encloses for your consideration copy of a despatch dated May 26, 1922, from the American Consul General at Shanghai, China, requesting instructions relative to the relief of aliens discharged from American vessels for cause after having been convicted and having served prison sentences in China. There is also enclosed a copy of a letter dated May 29, 1922, from a number of the members of the crew of the American barque William Dollar, relative to their trial and the subsequent refusal of the Consul General to furnish them with relief.

In order that appropriate instructions may be forwarded to the Consul General at Shanghai, I shall be pleased to receive an expression of your views on the subject.

The correspondence transmitted by you involves mainly administrative questions, it relating to the arrest and trial of certain seamen in the United States court in China on charges alleging disobedience of the commands of their superior officers and who complain of the treatment they received by being required to pay for their board while in the jail.

The United States Consul General has reported thereon, stating also that the men, upon their discharge, applied to the British Consulate General for relief, where all were accepted as British subjects; that an official of the British Consulate General called upon the United States Consul General in reference to such relief and the United States Consul General recommends that it be not granted. I have to suggest that the mere submission of correspondence leaves it uncertain and indefinite as to the question upon which a decision of this office is desired. There should be given a definite statement of facts with the question that appears therein involved.